FILED

United States Court of Appeals

Tenth Circuit

August 13, 2009

UNITED STATES COURT OF APPEALS
Elisabeth A. Shumaker
TENTH CIRCUIT

Clerk of Court

UNITED STATES OF AMERICA,

Plaintiff - Appellee,
No. 09-8030
(D.C. No. 2:96-CR-00102-ABJ-1)
(D. Wyo.)

v.
GONZALO GOMEZ-OLIVAS, a/k/a
Anthony M. Flores,
Defendant - Appellant.

ORDER AND JUDGMENT *

Before KELLY, BRISCOE, and HOLMES, Circuit Judges. **

Defendant-Appellant Gonzalo Gomez-Olivas, a federal inmate appearing

pro se, appeals from the district courts denial of his motion for sentence
reduction pursuant to 18 U.S.C. 3582(c) and Amendments 591 and 599 to the
U.S. Sentencing Guidelines. See R. Doc. 436. Mr. Gomez-Olivas was tried and
convicted of conspiracy to possess with intent to distribute and distribution of
*

This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. It may be cited,
however, for its persuasive value consistent with Fed. R. App. P. 32.1 and 10th
Cir. R. 32.1.
**

After examining the briefs and the appellate record, this three-judge
panel has determined unanimously that oral argument would not be of material
assistance in the determination of this appeal. See Fed. R. App. P. 34(a); 10th
Cir. R. 34.1(G). The cause is therefore ordered submitted without oral argument.

cocaine and marijuana in violation of 21 U.S.C. 841(a)(1), 841(b)(1)(A), and

846. United States v. Torrez-Ortega, 184 F.3d 1128, 1131 (10th Cir. 1999). On
direct appeal, this court reversed and remanded due to a confrontation clause
violation. Id. at 1135-36, 1138. During the new trial, in January 2000, Mr.
Gomez-Olivas entered into a plea agreement, in which he stipulated to a 30-year
sentence. R. Doc. 351 at 6. He subsequently received that sentence. R. Doc.
354. Thereafter, Mr. Gomez-Olivas began his pursuit of relief from his prison
sentence, a portion of which we recount here.
On September 29, 2000, Mr. Gomez-Olivas filed a motion to vacate his
sentence pursuant to 28 U.S.C. 2255, R. Doc. 369, which the district court
denied, R. Doc. 390. On November 16, 2006, he filed a motion pursuant to 18
U.S.C. 3582(c) requesting that the court reduce his sentence, see R. Docs. 406,
408, which was denied on November 20, 2007, R. Doc. 412. Apparently unaware
that the district court had denied his motion, he then filed a motion for a writ of
mandamus in March 2008, see R. Docs. 413-17, which this court denied as moot
on June 23, 2008, R. Doc. 418. On July 7, 2008, Mr. Gomez-Olivas attempted to
appeal the denial of his 3582(c) motion to reduce sentence, R. Doc. 419, but we
dismissed the appeal as untimely, United States v. Gomez-Olivas, No. 08-8046
(10th Cir. Aug. 6, 2008) (Order). The district court then denied Mr. GomezOlivass Fed. R. Civ. P. 60(b)(6) motion on November 21, 2008. See R. Docs.
426, 427. Finally, on February 4, 2009, he filed another motion pursuant to 18
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U.S.C. 3582(c), R. Doc. 429, which was denied as moot on February 23, 2009,
R. Doc. 434. He now appeals that denial, arguing that he is entitled to a
modification of his sentence pursuant to guideline amendments 591[] & 599. 1 R.
Doc. 436 at 1.
Mr. Gomez-Olivas has moved for leave to proceed on appeal without
prepayment of costs or fees. In order to succeed on his motion, he must show a
financial inability to pay the required filing fees and the existence of a reasoned,
nonfrivolous argument on the law and facts in support of the issues raised on
appeal. See 28 U.S.C. 1915(a)(1); McIntosh v. U.S. Parole Commn, 115 F.3d
809, 812 (10th Cir. 1997). Mr. Gomez-Olivas cannot meet that standard given
that his second motion to reduce his sentence pursuant to 3582(c) is plainly
successive and foreclosed by circuit precedent. As the district court held, Mr.
Gomez-Olivass sentence was not based on a sentencing range that has
subsequently been lowered by the Sentencing Commission, 18 U.S.C.
3582(c)(2), but rather was the product of a stipulated plea agreement and
therefore does not qualify for a reduction. R. Doc. 412 at 2-4; see United States
v. Trujeque, 100 F.3d 869, 871 (10th Cir. 1996); United States v. Gage, 315 F.
Appx 48, 48-49 (10th Cir. 2009) (unpublished); United States v. Gonzales, 308

We asked the parties to submit briefs on jurisdiction and conclude that

Mr. Gomez-Olivass notice of appeal was indeed timely, having been filed on
March 6, 2009, though entered on the docket on March 11, 2009. Fed. R. App. P.
4(b)(1)(A)(I), 26(a)(2).
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F. Appx 251, 252 (10th Cir. 2009) (unpublished); see also United States v.
Sanchez, 562 F.3d 275, 280-82 (3rd Cir. 2009); United States v. Scurlark, 560
F.3d 839, 842-43 (8th Cir. 2009); United States v. Peveler, 359 F.3d 369, 377-79
(6th Cir. 2004). But see United States v. Dews, 551 F.3d 204, 209-12 (4th Cir.
2008), en banc rehg granted (Feb. 20, 2009). To the extent that he is raising
other sentencing issues, Mr. Gomez-Olivas would be required to apply for and
receive certification of any second or successive 2255 motion before
proceeding. See 28 U.S.C. 2255(h) (requiring either newly discovered
evidence or a new rule of constitutional law before this court can certify a
second or successive 2255 motion).
APPEAL DISMISSED. The motion to proceed in forma pauperis is
DENIED.

Entered for the Court

Paul J. Kelly, Jr.

Circuit Judge

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